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Administrative & court decisions

In a recent memoranda to NLRB Regional offices, the NLRB Division of Advice concluded that employees who post complaints about their employment on Facebook or other social media sites may not be protected from disciplinary action, even if their complaints are job-related. In the three cases reviewed, employees who were fired or disciplined for posting job-related complaints asserted that their employers’ actions violated Section 8(a)(1) of the NLRA. The NRLB Division of Advice concluded in each case, the online comments were individual grievances or gripes, rather than concerted complaints, and the NRLA did not protect the workers against disciplinary action. In re JT’s Porch Saloon & Eatery Ltd.; Martin House; Wal-Mart. For more information on this topic, click here to see Winston & Strawn LLP’s recent client briefing on these memoranda.

Reversing a finding by an administrative law judge, the NLRB found that Peterbilt Motors Co.’s refusal to hand over wage and benefits information requested by the United Auto Workers did not materially affect the stalled negotiations and therefore did not make the lockout at the truck manufacturer’s Nashville, TN plant unlawful. The NLRB also overturned the administrative law judge’s ruling ordering Peterbilt to compensate employees for wages during the lockout period. The plant has been permanently closed since April 2009 when negotiations over a 2008 CBA were officially stalled. Peterbilt Motors Co.’s.

The U.S. Court of Appeals for the Eighth Circuit revived a previously dismissed lawsuit filed by ABF Freight against the International Brotherhood of Teamsters (IBT) and rival trucking company YRC Worldwide over allegations that IBT and YRC violated a national CBA when they negotiated concessionary amendments to the contract due to YRC’s dire financial situation. The case was dismissed earlier by the U.S. District Court for the Western District of Arkansas in December 2010 on the grounds that ABF did not have standing to bring the action and that the court lacked subject matter jurisdiction to hear it. The Eighth Circuit found ABF did have constitutional standing with regard to IBT because the interim agreement between the union and employer specified that ABF would become a party to the new NNMFA and would implement its work conditions. ABF Freight Sys. Inc. v. Int’l Bhd. of Teamsters.

In a 2-1 split decision, the Eighth Circuit determined that the Norris-LaGuardia Act deprived a district court of jurisdiction to enjoin the NFL from continuing to lockout its players during the negotiation of its CBA. The circuit court stated that the district court lacked jurisdiction in the case because it concerns the terms or conditions of the players’ employment and therefore “involve[es] or grow[s] out of a labor dispute” under the Norris-LaGuardia Act. In March, a group of players filed a complaint in federal district court claiming that the NFL’s planned lockout would amount to a group boycott and price-fixing agreement in violation of the Sherman Antitrust Act, as well as state contract and tort law. Brady v. National Football League.

The Saskatchewan Labor Relations Board ruled, 2-1, against unfair labor practices complaints filed against Wal-Mart Canada Corp., by the United Food and Commercial Workers. The union had alleged illegal efforts to block organizing at the company’s outlet in Weyburn, Saskatchewan. The Labor Board also upheld an application by Wal-Mart employees seeking a vote to decertify the union. UFCW has applied for judicial review of the labor board ruling, which is scheduled to be heard August 11, 2011. United Food & Commercial Workers, Local 1400 v. Wal-Mart Canada Corp.

The U.S. Court of Appeals for the Sixth Circuit affirmed the NLRB’s ruling that an International Union of Operating Engineers local did not violate federal labor law when it fined and expelled a Michigan member, David Williamson, who was hired as a labor consultant. Williamson was hired by the start-up firm, Hydro Excavating, to determine which unions could claim jurisdiction over the excavation work and to identify those that would offer the most cost-effective labor terms if they represented the employees performing the work. In denying Williamson’s petition for review of the NLRB’s decision, the court stated that the National Labor Relations Act (NLRA) did not prohibit the Operating Engineers Local 324 from taking action against Williamson. Specifically, the court stated that Section 8(b)(1)(B) of the NLRA prohibits union coercion of an employer “in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances,” however, the NLRB had “a rationale basis to conclude that information-gathering is qualitatively different from the activities Section 8(b)(1)(B) protects.” Williamson v. NLRB.

The U.S. Court of Appeals for the Ninth Circuit ruled that the general counsel for the NLRB may be assigned the authority to file petitions seeking injunctive relief. In the matter before the court, an NLRB administrative law judge determined that a Hawaii-based hotel had engaged in various unfair labor practices. The Regional Director of the NLRB sought and was granted an injunction against the hotel. The petition had been approved by the Board’s general counsel, but not by the NLRB itself. The Ninth Circuit panel disagreed with the hotel’s interpretation of Section 10(j) of the NLRA, stating that the law does not specify the level of involvement the Board must have in each petition for injunction. Although the underlying NLRB proceeding remains pending, the Court affirmed the injunction on the merits. Fankl v. HTH Corp., et al.

Citing the U.S. Court of Appeals for the Tenth Circuit’s deference to tribal sovereignty, an Oklahoma federal district court granted the Chickasaw Nation’s request for a preliminary injunction, on July 11, barring the NLRB from hearing charges by International Brotherhood of Teamsters Local 886 that a casino controlled by the tribe violated the rights of employees under federal law. In granting the injunction, the court rejected the argument that it lacked jurisdiction to enjoin an unfair labor proceeding. The court said that if the appellate court decides the NLRB is empowered to enforce the NLRA against tribal entities, the NLRB will be free to resume processing the charges. In December 2010 Local 886 filed unfair labor practices charges against the casino alleging that it interrogated employees about union activities, prohibited solicitation of employees on behalf of the union, and engaged in unlawful surveillance. Chickasaw Nation v. NLRB.

Regis Corp., which owns franchises or holds ownership interests in more than 12,000 beauty and hair salons, has agreed to a NLRB settlement requiring Regis to post NLRB notices at approximately 6,500 facilities across the United States and to produce and distribute a new DVD that will show an NLRB agent introducing and then reading the entire text of the NLRB remedial notice. In addition, the agreement awards back pay to two employees that claimed they were subjected to discrimination due to resisting company use of secret vote agreements. This agreement resolves unfair labor practices charges against Regis Corp. alleging that it pressured employees in late 2009 not to sign union authorization cards and required employees to watch a DVD titled “Union Awareness,” which encouraged employees to sign agreements that would limit the effect of any authorization cards they signed in the future. Regis Corp.

UNITE HERE, in a settlement reached with Sutter Health, agreed to pay $6 million to the hospital and to apologize for sending false and disparaging postcards to potential hospital patients alleging that the hospital chain’s linens were dirty and germ-laden. The settlement ends six years of litigation and comes almost a year after a state appellate court overturned a $17 million jury award to Sutter Health because of faulty jury instructions. In this case, the union’s primary dispute was with Angelica, an industrial laundry that provides linens to hospitals across Northern California, including Sutter hospitals, and employed more than 2,500 workers represented by UNITE HERE. In conjunction with a nationwide campaign in 2003 to organize workers at Angelica’s commercial laundries, the union investigated and found that Angelica’s physical facilities were not in compliance with health and safety regulations. UNITE HERE sent its report to many of Angelica’s customers, including Sutter Health, after the hospital refused to meet with union representatives to discuss the union’s labor dispute. In 2005, Sutter Health sued UNITE HERE for defamation, trade libel and intentional interference with prospective economic relations. Sutter Health v. UNITE HERE.

The California Supreme Court ruled, 6-1, that a Los Angeles city ordinance requiring purchasers of large grocery stores to employ the prior owner’s employees for 90 days is not preempted by the NLRA or the California Retail Food Code. The court found that the NLRA does not preempt the ordinance because there was no evidence of Congress’s affirmative intent to “leave the subject of employee retention unregulated by states and municipalities.” Furthermore, the ordinance does not interfere with union activities or the collective bargaining process. The court also found that the ordinance was not preempted by California Retail Food Code because it did not overlap with the Code by imposing substantive food safety standards. Cal. Grocers Ass’n v. Los Angeles.

The National Labor Relations Board held that Local 509 of the Laborers’ International Union’s promise that its employees would not have to pay union dues that their former employer did not deduct from their pay amounted to an improperly granted benefit that interfered with an employee vote on decertifying the union. The NLRB’s decision was based on the timing of the announcement which occurred shortly before the employees voted on a petition to decertify the union. Go Ahead N. Am. LLC.

In two separate rulings, an administrative law judge recommended a new election be held on representation for 43,000 Kaiser Permanente workers in California and roughly 400 medical social workers at 37 Kaiser facilities after finding unlawful conduct by one union in the two-union race for representation between National Union of Healthcare Workers and United Healthcare Workers-West. The ALJ found that United Healthcare Workers-West, a local of the Service Employees International Union, interfered with the unit employees’ free and un-coerced choice in the election when it disseminated warnings that Kaiser was likely to unlawfully withhold wage increases and other benefits from employees, as it was found to have done in 2009. The United Healthcare Workers West is considering an appeal. Kaiser Found. Health Plan. Permanente Med. Group.

A Virginia federal judge denied a motion to dismiss, filed by Service Employees International Union (SEIU), in a matter brought by food services company Sodexo Inc. Sodexo alleged the union violated the Racketeering Influenced and Corrupt Organizations Act by attempting to extort company management into allowing 80,000 hourly employees to unionize. In doing so, the company alleged the SEIU tried to circumvent the NLRB’s traditional unionization/election process. Sodexo Ind. v. Service Employees International Union, et al.